The State of Western Australia v RC - [2017] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- RC [2017] WADC 171
CORAM:   CHIEF JUDGE SLEIGHT
HEARD:   27 NOVEMBER 2017
DELIVERED          :   14 DECEMBER 2017
PUBLISHED           :   22 JUNE 2018
FILE NO/S:   IND 2179 of 2016
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
RC

Catchwords:

Criminal practice - Protected communication - Counselling communication - Meaning of a communication 'in confidence'

Legislation:

Evidence Act 1906 (WA)

Result:

Documents protected communication and access granted

Representation:

Counsel:

Applicant	:	Mr D J Krueger
Accused	:	Mr A G Elliott

Solicitors:

Applicant	:	State Director of Public Prosecutions
Accused	:	NR Barber Legal

Case(s) referred to in decision(s):

Nil

CHIEF JUDGE SLEIGHT:

Background

This decision concerns the application of the protective communication provisions contained in s 19A to s 19M of the Evidence Act 1906 (WA).
Section 19C provides that a person cannot disclose or require disclosure of a protected communication in, or in connection with, any criminal proceedings except with, and in accordance with, the leave of the court.
In this matter the parties have already gained access to the material in circumstances which I will describe shortly. Accordingly, effectively leave is sought retrospectively. This is important because s 19K of the Act provides:
Evidence that, because of the protection provisions, cannot be disclosed or required to be disclosed in proceedings is not admissible in the proceedings.
This means that leave (albeit retrospectively) is required for the evidence contained in the protective communication to be admissible.

Nature of charges

The accused is charged with 13 sexual offences alleged to have been committed against two children under the age of 13 who are sisters. This application relates to one of the children, L.
The accused became a friend of the complainant's father, E, when they were refugees together in a camp in Tanzania. The State's case is that the accused regularly visited the house of E, his wife, and the two daughters (the complainants). It is alleged that during these visits various sexual offences occurred.

Subpoena to produce

The evidence of the two complainants was taken at a pre‑recording on 24 July 2017. On 13 July 2017, prior to the pre‑recording, the solicitor acting for the accused issued a summons against the school where the two complainants attended. The subpoena required the school to produce:
A copy of any document, either electronic or hard copy in possession, custody or control of the school, being school reports and other records touching upon or concerning the behaviour or conduct of (the complainants) whilst pupils at the school.
The summons excepted from the requirement:
any document, recording or evidence which is a protected communication as defined in the Evidence Act 1906 (WA), s 19A and s 19B.
A copy of the relevant provisions was attached to the summons.
After the pre-recording was conducted an envelope was produced to the court on behalf of the school on or about 11 August 2017. Accordingly, the documents produced were not available at the time of the pre-recording. I make the observation that the issuing of the summons to produce the Activity Report ought to have been made sufficiently early so as to ensure production prior to the pre-recording. This would have avoided the need for the trial to be aborted (in circumstances described later in this decision) and the significant waste of court resources. More importantly, it would have avoided the potential need for a young child complainant to be recalled.

Activity Report

The documents produced in answer to the subpoena include an Activity Report which includes an entry by a Ms J made on 4 November 2015 stating as follows:
L came to see me about an issue with her dad. Her dad hit her on the left shoulder the night prior and her shoulder was sore. Her father was angry that she had helped her mum gain access to her mother's bank account and change the passwords. Her mother had said 'do not hit her just because she is not your daughter.' L was upset about this. L said her dad has never hit her before.

Relevance of Activity Report

The trial of the charges against the accused commenced before Judge Eaton and a jury on 14 August 2017. His Honour terminated the trial after its commencement and discharged the jury. The reason for his Honour aborting the trial is explained by the nature of the defence in this case. At her pre-recorded evidence, L acknowledged that she had been having some problems with her mother shortly prior to her disclosure to the police, including being rude to and disobeying her mother. L also admitted that she tried to run away from home, and that she had decided to make trouble for her parents. L was cross-examined to suggest that in order to make trouble for her parents, she made up a story about the accused, and she told her sister (the second complainant) to do the same.
The defence of the accused in this matter is that the incidents complained of did not occur and that the disclosure of the offending by L was an attempt to divert attention from her disobedient and rebellious behaviour, which culminated in her packing her clothes so as to leave home on the evening 7 February 2016, which was the night before she made a disclosure of the alleged sexual abuse.
During cross-examination of the complainant's parents in the aborted trial, the complainant's mother could not recall the incident described in the Activity Report dated 4 November 2015 and the complainant's father denied that such an incident had occurred.
It is contended by the accused that the evidence of the alleged conversation made between L and Ms J on 4 November 2015 is relevant to the defence case on the following grounds:
(a)If the complainant L, admits that an incident did occur on or about 3 November 2015 (that is the night prior to the report to Ms J) then it will demonstrate even greater family discord, and even more reason for the complainant to make a false accusation against the accused. The accused's counsel contends that proof of this motivation will be relevant to the issue of credibility.
(b)If the complainant L, denies that any incident occurred, then she will be asked whether she made a report in terms as outlined in the Activity Report. If she denies any such complaint as recorded in the Activity Report then it is contended that pursuant to s 21 of the Act, the Activity Report could be proved as a prior inconsistent statement against the complainant.

Nature of relationship between complainant and Ms J

Ms J made a statement dated 24 August 2017. In this statement she stated she was one of two school support co‑ordinators at the school. She further stated that on 4 November 2015, L came to Student Services upset. It was then that she complained of the incident about her father which was recorded in the Activity Report. Later in the day Ms J says she checked on L and made sure she was safe to go home. In a subsequent statement dated 24 October 2017, Ms J said that when she speaks to students she makes them aware that depending on the nature of the conversation, she may need to speak to other people or pass on information if she believes the student is at risk or has made a disclosure. The statement then goes on to state at [8]:
If the student continues with our conversation, they accept the fact that the conversation is not in confidence.
The second statement also goes on to state that:
11.I am not a qualified counsellor and do not act as such in my role as Student Support Coordinator.
12.The role of a Student Support Coordinator is to support the pastoral care of the students. To link students and families/guardians up with external agencies where specialised support may be required. Work with school leaders and the Student Services team to develop and promote encouragement programs and activities throughout the school. To assist in the restorative practices where required between students and staff.
…
15.I have a Certificate III Education Support, Certificate IV Education Support Special Needs, and Professional Development; Gate Keeper Suicide Prevention Training, basic Counselling short course. I enrolled in September to complete a diploma in Youth Work.
The State has also obtained a signed statement from the complainant L dated 12 October 2017 wherein she states:
10.When I speak to either P or Ms J I know that the conversation is not in confidence.
11.I know that they may speak to my teachers to let them know why I may be acting in a certain way.
The State also obtained an earlier statement of the complainant L after the termination of the trial. This statement is dated 21 August 2017. The statement goes into some detail about the relationship the complainant L had with her parents. It also describes the incident referred to in the Activity Report. At pars [33] - [40] the complainant L says in her statement:
It got to the point where my stepdad slapped me on my shoulder. I can't remember which shoulder.
The slap hurt me a little bit but I didn't cry. I usually suck it up.
I just went into my room because I'd had enough.
He had never hit me before.
Mum was also in the kitchen and saw what happened.
I think about a week later, I mentioned it to my counsellor at school.
The school has two counsellors and I have spoken to both.
They are P and Ms J, I don’t know her surname.

Issues

The issues that arise for this decision are as follows:
1.Was the communication by the complainant L with Ms J a protected communication?
2.If the communication was a protected communication, does the applicant have a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication?
3.Whether it is in the public interest to grant leave to disclose.
4.Whether the statement of L on 21 August 2017 is evidence as to the same effect as the contents of the document recording the protected communication and therefore the requirement under s 19E(1)(b) has not been satisfied?

Issue 1: Was the communication by the complainant L with Ms J a protected communication?

The threshold issue that needs to be considered in this matter is whether the conversation between the complainant L and Ms J as recorded on 4 November 2015 in the Activity Report is a protected communication.
Initially the State indicated it contended that the communication was a protected communication but when the matter came before me on 27 November 2017, counsel appearing for the State contended that it was not a protected communication. This was likewise the position of the accused.
Normally in an adversarial environment where both parties adopt a common position the court is reluctant not to accept the common position. However the court is not bound to do so and this is particularly in proceedings of this nature where the provisions concerning protected communication are clearly meant to be a protection for the benefit of the complainant in sexual offences (a non-party to the proceedings). The complainant L was given notice by the court of the application of the accused in relation to this matter and although the mother of the complainant indicated she would attend on behalf of the child and oppose the application, no appearance was made by the mother. In such circumstances I consider it is important that I approach the issue with some caution and ensure that the protections offered by the Act to protect certain confidential communications are not ignored.
Counsel for the accused argued that the content of the Activity Report of 4 November 2015 was not a protected communication because it was not a communication with a counsellor, and secondly, in the alternative, the communication was not in confidence.
The first point arises because a protected communication is defined in s 19A(1)(a) as a counselling communication. A counselling communication is defined as meaning a communication:
… to another person who is counselling the complainant in relation to any harm the complainant may have suffered.
Section 19A(2) provides that a person counsels another person if -
(a)the person has undertaken training or study or has experience that is relevant to the process of counselling persons who have suffered harm; and
(b)the person –
(i)listens to and gives verbal or other support or encouragement to the other person; or
(ii)advises, gives therapy to or treats the other person,
whether or not for fee or reward.
Although Ms J says she is not a 'qualified counsellor' she has undertaken training that is relevant to the process of counselling persons who have suffered harm, albeit a short course, and in my opinion her role as student support coordinator falls within the wide definition of counselling. Ms J describes the role as including 'to support the pastoral care of the students' (statement dated 24 October 2017 at [12]). In my opinion this falls within the definition of a person who 'listens to and gives verbal or other support or encouragement to the other person.' That the nature of the role is per se in the nature of counselling is confirmed by the perception of L who refers to Ms J as a counsellor.
Based on the evidence before me, I am satisfied that Ms J is a counsellor within the wide definition contained in s 19A of the Act.
The next issue raised by both counsel arises from the definition of 'counselling communication' in s 19A(1) of the Act which requires that the communication is made 'in confidence'.
The expression 'in confidence' is not defined in the legislation. Neither counsel provided any assistance by way of authorities as to the meaning of 'in confidence'. Instead, both counsel simply relied upon statements of Ms J and L that the conversations between students and the Student Support Co-Ordinator are not 'in confidence' communications because there is an understanding that the coordinator can pass the information onto teachers. In my opinion these submissions were superficial.
The social practice of designating certain information as confidential has a two-fold aim. First, it seeks to facilitate communication relating to intimate or other sensitive matters between persons standing in special relationships to each other. Second, the practice is designed to exclude unauthorised persons from access to such information. Confidentiality is therefore linked to control over the disclosure of and access to certain information.
The duty of confidence is not absolute. There are circumstances in which confidential information may, or even must, be disclosed. A professional may disclose confidential information where her interests require disclosure, for example in order to defend a legal action brought by the client or to enforce a debt against the client. Sometimes the professional must disclose confidential information, for example where a doctor is a witness in court proceedings and is asked a question about the patient's condition. There are a number of provisions in the Public Health Act 2016 (WA), and in regulations made thereunder, which impose mandatory reporting requirements for certain diseases or conditions.
In other situations a person may give another person who is in receipt of confidential information the authority to pass that information on to other persons without removing the essential quality of the original communication being in confidence. An example of this is a client authorising a solicitor to brief a barrister and pass on confidential instructions, or a patient authorising a doctor to seek a second opinion and refer a patient to a specialist.
The authorisation to pass on otherwise confidential information in such circumstances does not mean that the original communication is no longer classified as confidential, that it remains an 'in confidence' communication. See Gurry on Breach of Confidence, 2nd Edition par 5.21.
Whether a communication is 'in confidence' can generally be ascertained from the nature of the relationship and whether there exists a legal or moral obligation not to use the information as the recipient chooses. In the present case, the communication was to a co-ordinator of student support in the nature of pastoral care. The nature of the contact between the complainant L and Ms J was in the nature of counselling and in my opinion an 'in confidence communication' existed notwithstanding there was a qualified right to pass on information to teachers.
For these reasons, I reject the submissions of both counsel and find that the communication was in confidence and comes within the definition of a protected communication of the Act.

Issue 2: If the communication was a protected communication does the applicant have a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication?

Section 19E (1) provides as follows:
On the hearing of an application for leave, leave is to be refused by the court if the applicant does not satisfy the court –
(a)that the applicant has a legitimate forensic purpose for having leave to disclose or require disclosure of the protected communication; and
(b)that other evidence to the same effect as –
(i)the protected communication; or
(ii)the contents of the document recording the protected communication,
as the case may be, is not available.
Issue 2 relates to the question whether the court is satisfied under s 19E(1)(a) that the accused has a legitimate forensic purpose for having leave to disclose the protected communication.
It is not in dispute between the accused and the State that the accused has a legitimate forensic purpose for having leave to have disclosure of the protected communication being the entry of 4 November 2015.
I agree with the position taken by both parties. I believe that the evidence of L being hit by her stepfather reinforces the argument that she may have had a motivation for making a false allegation and goes not only to credit but to the issue as to whether the alleged sexual acts by the accused occurred. As mentioned earlier, the case of the accused is that the evidence of the slapping incident suggests a heightened disharmony between L and her parents, giving a greater motivation to make allegations against the accused, who was a long-standing friend of L's stepfather.
That there is a legitimate forensic purpose is consistent with the views taken by his Honour Judge Eaton who terminated the trial because the accused had not been given the opportunity to cross‑examine the complainant at the pre-recording in relation to the incident described in the Activity Report of 4 November 2015.

Issue 3. Whether it is in the public interest to grant leave to disclose the material

Section 19G of the Evidence Act provides as follows:
(1)In determining the application for leave, the court may grant leave to disclose, or require the disclosure of, the protected communication if, and only if, the court determines that it is in the public interest to do so.
(2)For the purposes of subsection (1) the court is to have regard to the following —
(a)the extent to which disclosing, or requiring the disclosure of, the protected communication is necessary to allow the applicant for leave to make a full defence;
(b)whether the evidence of the protected communication or the contents of the document recording the protected communication will have substantial probative value;
(c)the likelihood that disclosing, or requiring the disclosure of, the protected communication will affect the outcome of the proceedings;
(d)the public interest in ensuring that complainants receive effective counselling, and the extent to which failure to preserve the confidentiality of protected communications may dissuade complainants from seeking counselling or diminish the effectiveness of counselling;
(e)the public interest in ensuring that adequate records are kept of counselling communications;
(f)the likelihood that disclosing, or requiring the disclosure of, the protected communication will cause harm to the complainant, and the nature and extent of that harm;
(g)any other matter that the court considers relevant.

In my opinion, it is in the public interest for the application for leave to be granted. I believe that without leave being granted the accused's defence is potentially inhibited by not being able to fully explore the issue of motivation for making a false allegation and accordingly the material goes not only to credit but as to whether in fact the alleged offences occurred. For the same reason the material, in my opinion, has substantial probative value and as such has a potential to affect the outcome of the proceedings.
Given the nature of the material I do not believe there is a high level of sensitivity. The complainant L was willing to make a statement about the same allegations to the police. I have no evidence before me which persuades me that to give leave may dissuade complainants from seeking counselling or diminishing the effectiveness of counselling. Further, because of the nature of the disclosure, I do not believe that the complainant L is likely to suffer harm.

Issue 4: Whether the statement of 21 August 2017 is evidence as to the same effect as the contents of the document recording the protected communication and therefore the requirement under s 19E(1)(b) has not been satisfied

The fourth issue arises from a submission from the State that the second of the pre-conditions set out in s 19E has not been satisfied in that evidence to the same effect is contained in the statement of the complainant L dated 21 August 2017. Hence it is argued the accused did not have to rely upon a protected communication to cross examine the complainant L about the alleged slap by her stepfather.
Based on my finding that the entry on the Activity Record is a protected communication, the statement of 21 August 2017 appears to have come into existence when the complainant L was questioned about the substance of the protected communication when the State and the accused should not have even known about the content without leave of the court.
In my opinion, the nature of the statement of 21 August 2017 is a reproduction of the protected communication, although it is in a different format and has been expanded. I reached the conclusion that this statement is also a protected communication and leave is required.
Accordingly, in my opinion, this is evidence that is not available otherwise within the meaning of s 19E of the Act. However, for reasons that I have given, I believe that the accused should be given leave to obtain disclosure of both the statement of 21 August 2017 and the extract from the Activity Report dated 4 November 2015. As to how these documents will be used at the trial will be an issue for counsel and the trial judge.
I wish to make it clear that I make no ruling in respect of the contention of defence counsel that the protected communications might be used under s 21 of the Act if the complainant L should give evidence inconsistent with the protected communication. The question might arise as to whether the issue then only goes to credit in relation to a collateral issue.
There is an underlying assumption in this decision that the complainant L will be recalled. However, an application to have her recalled will need to be made. If leave is given to have L recalled, then I anticipate there will be restrictions placed on the questions that she can be asked and possibly a time limitation placed on any further questioning.

Addendum to oral reasons

The opinion I expressed above that the duty of 'in confidence' is not an absolute concept is supported by s 19A(4) of the Act which provides:
For the purposes of the definition of counselling communication in subsection (1), a communication can be regarded as being made in confidence even if it is made in the presence of a support person or through or in the presence of an interpreter.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
ASSOCIATE TO CHIEF JUDGE SLEIGHT
22 JUNE 2018